United States District Court, N.D. Illinois, Eastern Division
October 6, 2004.
UNITED STATES OF AMERICA, Plaintiff,
RONALD BORCHERT, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant's motion to
dismiss Counts I and II of the indictment. For the reasons stated
below, we deny Defendant's motion to dismiss.
Defendant is charged by indictment of attempting to entice a
minor in violation of 18 U.S.C. § 2422(b), and interstate travel
with intent to engage in illicit sexual conduct in violation of
18 U.S.C. § 2423(b). The government alleges that Defendant
engaged in communications via the internet with an individual
that the Defendant believed to be a 15 year old female minor
named "Melanie." The government also alleges that Defendant eventually traveled across
state lines in order to meet "Melanie" and engage in illicit
sexual conduct with her. The individual that Defendant believed
to be "Melanie," a 15 year old female minor, that the Defendant
had been communicating with was actually an adult government
Defendant sought a series of continuances in this action, and
at each hearing informed the court that Defendant was
anticipating the filing of a motion to dismiss. We granted
Defendant's request for an extension of the deadline for the
filing of a motion to dismiss from February 5, 2004, to March 4,
2004, to May 24, 2004, and finally to July 7, 2004. On September
8, 2004, Defendant noticed up the instant motion to dismiss, but
failed to file the motion with the Clerk of Court. We ordered
Defendant to properly file the motion with the Clerk of Court and
gave deadlines for answer and reply briefs. Defendants motion
consists mainly of vague conclusory statements. We therefore
ordered Defendant to prepare a memorandum in support of its
motion to dismiss. On September 15, 2004, the court chambers
received a letter from Defendant's counsel seeking an extension,
despite the fact that the memorandum had been due two days
earlier. Although such a communication was improper, we granted
the motion in light of the fact that the case was scheduled for a
possible change of plea on October 6, 2004. Defendant's counsel
is warned that any future failure to comply with the court's
deadlines or improper communications with court chambers may
result in sanctions. Defendant's motion to dismiss challenges the
sufficiency of both Counts in the complaint. The government has
filed an answer to the instant motion. Defendant was given an opportunity to
reply but did not do so.
In reviewing the sufficiency of an indictment a court must
consider whether the indictment: "(1) states the elements of the
offense charged, (2) fairly informs the defendant of the nature
of the charge so that he may prepare a defense, and (3) enables
h[im] to plead an acquittal or conviction as a bar against future
prosecutions for the same offense. U.S. v. Yoon, 128 F.3d 515,
521-22 (7th Cir. 1997); Fed.R. Crim. Pro. 7(c).
I. New Arguments Presented in Memorandum
We first note that despite the fact that we have given
Defendant every opportunity to present his arguments in support
of his motion to dismiss in a timely fashion, Defendant attempted
to present new arguments in his memorandum in support of his
motion to dismiss. As indicated above, we granted Defendant's
request for extensions of the deadline for the filing of a motion
to dismiss from February 5, 2004, to March 4, 2004, to May 24,
2004, and finally to July 7, 2004. Even after the series of
continuances, Defendant filed motion to dismiss that was vague and contained conclusory allegations and therefore
government could not properly respond to the motion. The motion
provides vague one sentence statements such as that the charges
"exceed the authority of the Government to create such . . .
charge[s] under the Commerce Clause of the U.S. Constitution" and
that the enhancement penalty "is inapplicable to this case." (D.
Mot. 1, 2). Defendant provided no further elaboration to inform
the opposing side or the court of precisely what Defendant's
position was in regards to the above generalized contentions.
We gave Defendant an opportunity to file a memorandum in
support of his motion to dismiss to remedy the deficiencies in
his motion and to clarify and elaborate the arguments presented
in his motion. Defendant now attempts to introduce new arguments
in his memorandum in support of his motion to dismiss. The filing
deadline for the motion to dismiss has long since passed. As the
court made clear at the status hearing on September 15, 2004,
Defendant was solely given leave to file a memorandum in support
of his motion to dismiss (a memorandum that should have
accompanied his motion on September 15) in order to give
Defendant an opportunity to remedy the deficiencies in his motion
and allow the government to respond to his positions. Therefore,
we shall strike as untimely all arguments included in Defendant's
memorandum in support of the motion to dismiss that were not
included in the motion to dismiss. Defendant had ample
opportunities to present arguments to the court in a timely
Defendant argues in his memorandum that the language in 18
U.S.C. § 2422(b) stating that the phrase "to engage in prostitution or any
sexual activity for which any person can be charged with is a
criminal offense" is overly broad because "it would criminalize
conduct that in one state would not be a crime while in another
it could be criminal." (D. Mem. 5). Defendant also argues that
18 U.S.C. § 2422(b) "would make criminal activity which by the age
of the putative defendant is not criminal but by the age of
another does make it unlawful." (D. Mem. 5). Defendant also
argues that pursuant to the enticement statute "it is impossible
to communicate with any certainty with anyone under the age of 18
yrs. old or claiming to be under the age of 18 and know whether
it violates a criminal statute or ordinance somewhere." (D. Mem.
5). Defendant fails to offer more than conclusory statements in
support of the above three arguments and the arguments are
completely without merit. Also, regardless, Defendant failed to
introduce the arguments in a timely fashion and we strike all
arguments included in the memorandum in support of the motion to
dismiss that were not included in the motion to dismiss.
II. Undercover Adult Agent
Defendant argues that Counts One and Two should be dismissed
because "all the communications in the instant case were between
the Defendant and an adult." (D. Mot. 1, 2). In regards to Count
I, Defendant was only charged with attempt. He was not charged
with the completed crime. To prove an element for a charge of
attempt the government must only show that the defendant held the
belief that the element was met. See U.S. v. Echt, 2002 WL 188474, at *1 (N.D.
Ill. 2002) (stating that "18 U.S.C. § 2422(b) makes unlawful
attempts to induce those believed to be minors-even if they turn
out to be of-age-into sexual activities."); U.S. v. Miller,
102 F.Supp.2d 946, 948 (N.D. Ill. 2000) (stating that "defendant's
belief that an element is met is sufficient to meet the element
if attempt is charged."). The Seventh Circuit recently addressed
a charge of attempt in the context of a child pornography charge
in U.S. v. Johnson, 376 F.3d 689, 694 (7th Cir. 2004). The
court stated that the defendant was charged with "the attempt to
manufacture child pornography, and, as discussed below, an
attempt requires that the defendant believe that the intended
performer is a minor." Id. The court also stated that since the
defendant "did believe that [agent] was a minor, he is guilty of
an attempt to manufacture child pornography." Id. In the
instant action the government contends that it will present
evidence showing that Defendant believed that he was
communicating with a 15 year old female minor named "Melanie."
This is sufficient for the charge of attempt in Count I.
In regards to Count II, the indictment specifically charges
Defendant with traveling in interstate commerce "with the intent
and for the purpose of engaging in illicit sexual conduct. . . ."
The plain language of 18 U.S.C. § 2423(b) also makes it clear
that a defendant does not have to engage in illicit sexual
conduct with a minor in order to violate the statute. The
statutory violation occurs when "[a] person . . . travels in
interstate commerce . . . for the purpose of engaging in any
illicit sexual conduct with another person. . . ." Id. (emphasis added). In
the instant action the government has clearly indicated that
Defendant crossed state lines intending to engage in illicit
sexual conduct with "Melanie." Such circumstances are sufficient
for a charge under 18 U.S.C. § 2423(b).
III. Authority Under Commerce Clause
Defendant argues that Counts One and Two should be dismissed
because the charges "exceed the authority of the Government to
create such a charge under the Commerce Clause of the U.S.
Constitution." (D. Mot. 1, 2). In the Commerce Clause Congress is
given the power "[t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes." U.S.
Const. art. I, § 8, cl. 3. The Commerce Clause provides Congress
with authority to regulate "three broad categories of activity":
1) "the use of the channels of interstate commerce," 2) "the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities, "and 3) those activities having a
substantial relation to interstate commerce, . . . i.e., those
activities that substantially affect interstate commerce. . . ."
U.S. v. Lopez, 514 U.S. 549, 558-59 (1995).
Defendant cites United States v. Corp., 236 F.3d 325, 328-29
(6th Cir. 2001) to support its position that the charges in
the instant action exceed the authority provided by the Commerce
Clause. Defendant's reliance on Corp. is misplaced. First of all the case is from another circuit and therefore is
merely persuasive authority ratter than controlling authority.
Secondly, in Corp. the court merely held that the violation for
possession of child pornography exceeded the authority of the
Commerce Clause under the third category of activity delineated
in Lopez. Id. at 327-28 (stating that the defendant "moved to
dismiss the indictment, arguing that the origin of the
photographic paper outside the state of Michigan was an
insufficient nexus with interstate commerce based upon United
States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626
(1995)" and stating that the act in question "fell under the
third of" the Lopez categories)). Defendant fails to address
whether or not 18 U.S.C. § 2422(b) and 18 U.S.C. § 2423(b) are
valid exercises of the authority conferred by the Commerce Clause
in regards to the first and second categories of activity.
Under the first category of activity delineated in Lopez the
court can protect the use of channels of interstate commerce
"from immoral or injurious uses, and may forbid or punish the use
of the channels to promote dishonesty or the spread of evil or
harm across state lines." U.S. v. Schaffner, 258 F.3d 675,
679-80 (7th Cir. 2001). The offense specified in
18 U.S.C. § 2423(b) seeks to prevent persons from traveling in interstate
commerce across state lines to engage in criminal sexual conduct.
Such conduct clearly falls within the first category of activity.
We also note that other Circuits have rejected challenges to
18 U.S.C. § 2423(b) based on the Commerce Clause. See U.S. v.
Bredimus, 352 F.3d 200, 206 (5th Cir. 2003) (providing compilation of unsuccessful Commerce Clause challenges in various
In regards to 18 U.S.C. § 2422(b), the statute prohibits the
use of channels of interstate commerce persuasion, enticement, or
coercion of a minor to engage in unlawful sexual activity. Such
activity is clearly the type of immoral and harmful activity
delineated in the first category in Lopez. Defendant utilized
the internet to make interstate communications. See U.S. v.
Richeson, 338 F.3d 653, 660 (7th Cir. 2003) (stating that a
telephone is an instrument of interstate commerce); U.S. v.
Tykarsky, 2004 WL 1813206, at *2 (E.D. Pa. 2004) (stating that
"[t]elephone networks and the Internet are undoubtedly
`facilities of interstate commerce' [and that] [u]sing a computer
connected to the Internet equates to `the use of a facility or
means of interstate commerce,' even though the communications in
question may have actually been intrastate in character."). In
the instant action the government contends that it will present
evidence that Defendant used the internet to attempt to entice an
individual who he believed to be a minor into illicit sexual
IV. Statutory Minimum Sentence
Defendant argues that Count One that alleges a violation under
18 U.S.C. § 2422(b) should be dismissed because "[t]he
enhancement penalty of a minm mum [sic] of 5 years imprisonment
under this charge is applicable to this case." (Mot. 1).
Defendant's only elaboration of its position is a one sentence
statement in his memorandum. Defendant states in his memorandum
that "there is nothing wrong with the act which amends this section which directs the
enhancement is applicable to an attempt." (D. Mem. 5). We
On April 30, 2003, 18 U.S.C. § 2422(b) was amended to include
the 5 year minimum sentence. Pub.L. 109-21, § 103(b)(2)(A)(i).
The attempt provision of 18 U.S.C. § 2422(b) was included in an
amendment in 1998. Pub.L. 105-314, § 102(1)(A). It is also clear
from a plain reading of 18 U.S.C. § 2422(b) that the mandatory
minimum was intended to be applied to charges of attempt. The
alleged misconduct by Defendant in the instant action, as stated
in the indictment occurred in October, November, and December of
2003, which was after the inclusion of the attempt amendment in
the enticement statute and after the 5 year minimum sentence
Based on the foregoing analysis, we deny Defendant's motion to
dismiss Counts I and II of the indictment.
© 1992-2004 VersusLaw Inc.